Regina v MTN; Regina v CVH [2002] NSWSC 92

New South Wales Supreme Court

CITATION : Regina v MTN; Regina v CVH [2002] NSWSC 92 revised - 29/10/2009 FILE NUMBER(S) : SC 70034/00;70012/01 HEARING DATE(S) : 22 February 2002 JUDGMENT DATE : 22 February 2002

Regina (Crown) PARTIES : MTN (Accused) CVH (Accused) JUDGMENT OF : O'Keefe J

Mr G J Tabuteau - Crown COUNSEL : Mr P Bodor QC - Accused (MTN) Mr F Santisi - Accused (CVH) DPP (NSW) SOLICITORS : Michael Croke & Co, Kings Cross - Accused (MTN) Nicopoulos & Assoc, Burwood - Accused (CVH) CATCHWORDS : Practice and procedure - Jury - Report by jurors of events - Irregularity - Discharge of jury or juror - Test to be applied - Procedure to determine facts - Voir Dire examination of jurors by court Rex v Green (1950) 1 All ER 38 Rex v Furlong (1950) 1 All ER 636 CASES CITED : Regina v Chaouk (1986) VR 707 Regina v Emmett (1988) NSWLR 327 Webb v Regina; Hay v Regina (1994) 181 CLR 41 Regina v Elfar; Regina v Tier (NSW CCA 9 October 1995, unrepoted) DECISION : Jury not discharged and neither juror discharged.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

O'Keefe J

Friday, 22 February 2002

70034/00 -REGINA v MTN 70012/01 - REGINA v CVH JUDGMENT

1 HIS HONOUR: The accused, MTN and CVH, each stand charged with having murdered Tremaine Watene at Campsie on 10 November 1997. It is alleged that MTN stabbed the deceased and that CVH was present and participated in a joint criminal enterprise or extended joint criminal enterprise that led to the death in question. 2 The trial began on 29 January 2002. In the course of the Crown case, a large number of witnesses was called. Neither accused gave evidence. Including addresses and summing up the trial has taken 19 days to date. The jury retired at 11.10am on 21 February 2002. 3 During the afternoon of 21 February 2002 one of the sheriff's officers, to whose care the jury had been committed, reported that he had received separate reports from two members of the jury concerning events which they thought appropriate to report to him. Instructions were given to ensure that following the conclusion of proceedings for the day, all members of the jury were to be permitted to leave the precincts of the court by an exit which did not involve them traversing the public passages outside the court in which the trial was proceeding and to offer transport by means other than public transport should any members of the jury wish to avail themselves of the offer. 4 Before there was an opportunity to advise counsel of what had occurred, the jury sent a message that they wished to have certain portions of the transcript read. This was done, but did not conclude until approximately 4.27pm on 21 February 2002. 5 When the transcript references had concluded, I asked members of the public to leave the court so as to enable the jury to retire after they had left. The jury then left the court by an exit which did not involve them traversing the corridors outside the court. 6 At my request counsel attended in Chambers and were informed of my knowledge of the events and advised that further enquiries would be made. This was done in accordance with the openness and transparency that should characterise the conduct of criminal trials. Such openness and transparency are not only in accordance with principle but mandated by authority. 7 In Rex v Green (1950) 1 All ER 38, Lord Goddard CJ, when considering a claim that there had been an irregularity in the conduct of the trial because the Recorder, having received a note from the jury in which a question was asked concerning the case, responded without returning to court and without the communication being made known to the parties, said: "This court and the Divisional Court have said on more than one occasion that any communication between a jury and the presiding judge must be read in court, so that both parties, the prosecution and the defence, may know what the jury are asking and what is the judge's answer." (supra at 38)